The limits of "extraordinary power": a survey of first-degree murder appeals under Massachusetts General Laws Chapter 278, Section 33E.

Author:Hartung, Stephanie Roberts


The Supreme Judicial Court of Massachusetts ("SJC") frequently references its "extraordinary power" under Massachusetts General Laws Chapter 278, [section] 33E ("Section 33E") when reviewing first-degree murder convictions on appeal. (1) Section 33E affords the SJC the power of plenary review of first-degree murder convictions, and includes a mandate that the court review the entire record for errors not raised on appeal. (2) The broad parameters of Section 33E create the potential for a significant number of reversals on appeal under this provision. (3) To test the validity of this notion, the survey ("Survey"), which is summarized in this Article, examined first-degree murder appeals in Massachusetts from January 1, 1998 through January 1, 2008. (4) This Survey concludes that during the ten-year timeframe, just 7.5 percent of first-degree murder appeals (a total of twenty-one cases) resulted in reversal, and not a single case resulted in reducing the conviction to a lesser offense under Section 33E. (5)

This Article and Survey provide both criminal practitioners and academics a practical understanding of the types of homicide-related claims most likely to succeed on appeal. Specifically, this information will help practitioners avoid errors at trial likely to result in reversal, as well as help them craft more effective appellate briefs that appropriately highlight these issues. Further, academics specializing in criminal law can benefit from a practical understanding of the issues that are most likely to result in reversal on appeal.

Part I of this Article is an overview of homicide law in Massachusetts. (6) Part II explains the appellate procedure governing first-degree murder convictions in Massachusetts under Section 33E. (7) Part III provides an overview of the Survey results, along with a comparison to a analogous multi-state conviction reversal study published in 1989 by the National Center for State Courts Report. (8) Part IV provides the results of the Survey of first-degree murder appeals, including a summary of every case within the Survey that resulted in a reversal. (9)


    Given that murder is viewed as the most grave of all criminal conduct and consequently results in the longest sentences, a careful review by the appellate courts is warranted. (10) Additionally, because the Massachusetts statute defining murder has remained virtually unchanged for over 150 years, (11) most homicide reversals on appeal presumably result from substantive or procedural issues that are not the result of changes in the statutory language. (12)

    Homicide is defined as the unjustified killing of a person by another person. (13) Under Massachusetts law, homicide is divided into several categories, depending on the defendant's degree of culpability. (14) This approach to homicide prosecution is typical in most states. (15)

    1. First-Degree Murder

      Massachusetts statutory law defines first-degree murder as "[m]urder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life." (16) Thus, a defendant can be properly convicted of first-degree murder where the prosecutor has proven beyond a reasonable doubt that: (1) the defendant committed an unlawful killing; (2) with malice; and (3) with deliberate premeditation. (17) This statutory language has remained fundamentally unchanged since its inception in 1858. (18)

      Under Massachusetts common law, malice is considered to be the "essential element" of murder. (19) The malice element can be established in one of three possible ways. Malice can be satisfied by proof that the defendant either intended to kill the victim or to cause grievous bodily harm. (20) Additionally, "third-prong malice" can be established where the defendant's actions created a "plain and strong likelihood that death will follow." (21)

    2. Second-Degree Murder

      The Massachusetts statute defines second-degree murder as the catch-all category for any murder which does not fit the first-degree murder definition. (22) Because second-degree murder is based on less blameworthy conduct, sentencing is substantially more lenient than for first-degree murder. (23) Under Massachusetts law, second-degree murder convictions do not fall within the parameters of Section 33E and thus are not considered in this study. (24)

    3. Felony Murder

      Another theory upon which first-degree murder can be established is felony murder. (25) Under common law in Massachusetts, first-degree murder can be established by demonstrating the defendant's intent to commit a specific enumerated felony. (26) This intent substitutes for the malice requirement. (27) While felony murder is unpopular among academics, it is widely employed by prosecutors. (28) The primary criticism of the felony murder doctrine centers around the perceived disconnect between the defendant's degree of culpability and the resulting punishment. (29) In particular, the possibility that a defendant could be punished for first-degree murder for conduct which amounts to mere recklessness or criminally negligent conduct is the crux of the debate. (30) In spite of this academic debate, the felony murder doctrine is commonly employed in the prosecution of homicide cases in Massachusetts. (31)


    Although direct appeals from most criminal convictions in Massachusetts are initially brought before the Massachusetts Appeals Court ("Appeals Court"), convictions of first-degree murder are appealed directly to the SJC. (32) Such direct appeals to the SJC receive a substantially more expansive review. (33) Under Section 33E, the SJC must review not only those claims raised by counsel on appeal, but must also review the entire record to ensure the trial result is consistent with "justice." (34) This provision allows for a two-part review, in addition to a standard review of alleged errors raised by objection at trial. (35) First, the SJC reviews each case for unpreserved errors which give rise to "a substantial likelihood of a miscarriage of justice." (36) Second, the court reviews the complete record for overall "fairness" in order to determine whether the conviction should be reversed to a lesser offense or a new trial should be granted. (37)

    Another notable aspect of this appellate provision is that Section 33E allows the SJC to review the record for errors not objected to by trial counsel under a more relaxed standard of review. (38) While the applicable standard of review in Massachusetts for errors not objected to at trial is a "substantial risk of the miscarriage of justice," under Section 33E, the less stringent standard of a "substantial likelihood of a miscarriage of justice" applies. (39) Finally, under Section 33E, during the direct appellate process, the SJC has exclusive jurisdiction over all motions for a new trial filed with the trial court. (40) Although the Massachusetts trial courts also have unusually broad-reaching and verdict-reducing powers under Rule 25(b)(2) of the Massachusetts Rules of Criminal Procedure, these powers have rarely been invoked. (41)

    Section 33E empowers the SJC to review the entire trial transcript and reduce a first-degree murder conviction to a lesser offense in the interest of justice. (42) In exercising this "extraordinary power," the court has considered such factors as: (1) the spontaneity of the defendant's behavior; (2) the relationship between the parties; (3) the personal characteristics of the defendant; and (4) lack of evidence of motive. (43) However, despite its clear authority, the SJC has only invoked this power to reduce the conviction under Section 33E a total of twenty-five times in its history. (44) Moreover, during the time of this Survey, the SJC has repeatedly declined to invoke its authority under Section 33E. (45)

    Given the expansive protections available to the defendant under Section 33E, the potential exists for a significant number of first-degree murder convictions to be reduced or reversed. However, the results of the Survey, discussed in detail below, indicate the opposite conclusion.


    Although the important function performed by the state appellate courts in correcting trial court errors is not disputed, (46) there seems to be very little review of conviction reversal rates. (47) Notably, there appears to be no similar recent survey in publication that analyzes appellate reversal rates of criminal convictions with a particular focus on the substantive legal issues raised on appeal. (48) The most recent survey of this nature is the National Center for State Courts' report titled Understanding Reversible Error in Criminal Appeals ("NCSC Report"), published in 1989. Although published over twenty years ago and substantially larger in scope than this Survey, the NCSC Report provides a helpful point of comparison, given that the appellate practices of five different state appellate courts are reviewed.

    1. Parameters of the NCSC Report

      The NCSC Report involved a study of five different "state appellate courts hearing first-level criminal appeals." (49) The five courts involved were: (1) the California Court of Appeal, Third District; (2) the Colorado Court of Appeals; (3) the Appellate Court of Illinois, Fourth District; (4) the Maryland Court of Special Appeals; and, (5) the Rhode Island Supreme Court. (50) The NCSC Report studied appeals from all criminal convictions. (51) Homicides and other violent crimes constituted just over 50 percent of the total appeals reviewed. (52)

      The overall affirmance rate of the five courts reviewed in the study was 70.8 percent. (53) The NCSC Report further categorized non-affirmances as: acquittal, granting of a new trial, re-sentencing, and "other." (54) Those appeals resulting in a...

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